Jesus Herrera-Obrego v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00675-CR
Jesus HERRERA-OBREGO,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CR-0135A
Honorable Sharon MacRae, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 20, 2011
AFFIRMED
Jesus Herrera-Obrego was convicted of possession with intent to deliver cocaine in an
amount of more than 400 grams. In a single issue on appeal, Herrera-Obrego asserts the
evidence is legally insufficient to support his conviction either as a principal or as a party. We
hold the evidence is sufficient to support Herrera-Obrego’s guilt to the offense and affirm the
trial court’s judgment.
04-10-00675-CR
BACKGROUND
On the morning of September 16, 2009, Herrera-Obrego and Guadalupe Mosqueda-
Aguirre drove into Laredo, Texas from Monterrey, Mexico. Unbeknownst to them, a description
of their vehicle (a white Volkswagen bearing Mexico license plates, with male and female
occupants) and information that the car had a compartment with drugs inside had been passed to
American law enforcement. Officer Wayne Morgan, a police officer in Natalia, Texas who
works with the High Intensity Drug Trafficking Administration (“HIDTA”), stopped a car
matching the description of the Volkswagen in a routine traffic stop because the female occupant
(Mosqueda-Aguirre) was not wearing a seat belt. Mosqueda-Aguirre told the police officer that
she and Herrera-Obrego were friends and they were on their way to a flea market in San
Antonio. Herrera-Obrego told Officer Morgan the car belonged to his wife, but he told another
officer the car belonged to a friend of Mosqueda-Aguirre. 1 He also said he and Mosqueda-
Aguirre were going to the flea market and then returning to Monterrey later that same day.
Officer Morgan, who thought it was unusual for two people to drive ten hours just to go
shopping, asked for consent to search the car, which Herrera-Obrego granted. Officer Morgan
discovered the seat belts had been removed and replaced based on scratches he saw on the nuts
attaching the belts to the floorboard. He also noticed that the screws on the console between the
two front bucket seats had been tampered with, although the car was relatively new with only
6,000 miles on the odometer. The underside of the vehicle indicated the gear shaft had been
pulled forward and the tailpipe relocated. All these modifications led Officer Morgan to
conclude the vehicle had a hidden compartment, but he could not find a trap door. He testified
that most people who drive the vehicles used to transport controlled substances do not always
1
The car was registered to Marie Esther Carrizales-Alonso of Guadalupe, Nuevo Leon, Mexico. Mosqueda-
Aguirre is also from Guadalupe. Herrera-Obrego’s home address is in Monterrey, Nuevo Leon, Mexico.
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know what they are being paid to transport, but they do know there is a compartment in the car
that contains a controlled substance. In his experience, the driver is told to drive to San Antonio,
park the car for a few hours, and then drive back with money. After Officer Morgan completed
his search, he contacted HIDTA, which had surveillance officers in place to follow the car.
Officer Morgan released the car, and the entire stop lasted about fifteen to twenty-five minutes.
After Officer Morgan released the car, John Dyar, a police officer in San Antonio, Texas
who also works with HIDTA, followed the car from Natalia into Bexar County. Although
surveillance officers momentarily lost sight of the car, they made visual contact again when they
saw the car parked in an HEB Store parking lot, closer to the access road than to the store.
Officer Dyar watched as a man and woman got out of the Volkswagen and walked into the HEB.
Officer Dyar then saw a black Nissan drive into the lot. A Hispanic man got out of the Nissan
and walked around the lot, looking in the direction of the Volkswagen. He then walked to the
HEB where he met with Herrera-Obrego and Mosqueda-Aguirre. According to Officer Dyar, the
meeting was brief and nothing was exchanged. Officer Dyar believed the man who drove the
Nissan may have seen the HIDTA surveillance officers and decided not to drive away in the
Volkswagen. Officer Dyar explained it is common practice for drivers to leave vehicles in a
busy parking lot and wait for someone to get the car and drive it to another location to unload the
contraband. He testified the drivers are usually aware the vehicle is loaded with narcotics. Soon
after the man left in the Nissan, Herrera-Obrego and Mosqueda-Aguirre left the HEB parking lot.
The HIDTA surveillance officers followed.
Gerald Fuller, a San Antonio police officer, received a message from HIDTA asking him
to assist in a stop of the Volkswagen as it left San Antonio. When he saw the car slow its speed
to below the posted freeway speed limit, he pulled it over for impeding traffic. Herrera-Obrego
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explained he was having trouble with the vehicle’s cruise control, which caused him to slow the
car. Herrera-Obrego again consented to a search of the car. He also consented to a canine scent-
search.
Garland Gaston, a canine officer with the Leon Valley Police Department assigned to
HIDTA as a dog handler, and his dog conducted the scent-search. The dog alerted to the scent of
drugs and led the officers to the back of the center console inside the car. Officer Gaston
smelled fabric softener, which he explained was often used to mask the odor of drugs. He said
that, in his experience, the driver will park the car, leave the keys in the car, and walk to a
business for an hour or two. The car will then be driven away by another person. After the
drugs are removed from the car, it may be returned to the parking lot where it is driven away by
the original driver. Officer Gaston also noticed tool marks on the bolts, which indicated the car
had been modified. Herrera-Obrego told the officers the car had not been “worked on.” After
the car seat was removed, Officer Gaston noticed the screws holding the console in place were
loose. The officers found a compartment under the console, inside of which ten “bricks” of
cocaine were found. 2 At least two of the “bricks” were stamped with the image of a tarantula.
Detergent or fabric softener was layered inside the plastic that wrapped each “brick.” The gross
weight of the cocaine was approximately eleven kilograms, with a combined value in San
Antonio of approximately $250,000. The officers who saw the hidden compartment all stated it
could not have been seen by a casual observer of the car.
Robert Pineda, a special agent with Immigration and Customs Enforcement who is
assigned to the HIDTA unit, was at the scene when the cocaine was found. Agent Pineda
ascertained that Herrera-Obrego is a Mexican national who was in the United States on a legal
2
The police also recovered $800.00 in cash from Herrera-Obrego; $1,749.00 from Mosqueda-Aguirre; and a purse
containing two watches, three cellular telephones, a wallet, two Mexican passports, and four Mexican ID cards.
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tourist permit. Agent Pineda testified Herrera-Obrego told him that Mosqueda-Aguirre hired
him to drive her to San Antonio and that the cocaine belonged to her. Herrera-Obrego also told
the agent, “I know there’s something but she’s behind everything.” Herrera-Obrego did not act
surprised when the cocaine was discovered inside the car. The law enforcement officers
described Herrera-Obrego as calm, quiet, and cooperative during the two searches of the car.
Agent Pineda testified that Herrera-Obrego and Mosqueda-Aguirre together legally crossed the
United States/Mexico border twelve times beginning in 2007. Their most recent crossing prior
to September 16, 2009 was in a different vehicle on August 1, 2009. Agent Pineda thought it
suspicious that they would drive into Texas twice in the same month but in two different
vehicles. On September 16, they crossed the border into Laredo at 5:28 a.m., leaving Monterrey
at approximately 2:00 a.m. In addition to her twelve trips with Herrera-Obrego, Mosqueda-
Aguirre entered the United States sixteen times during the same time period.
The only witness called by the defense at trial, Rebecca Reed, testified she viewed the
Volkswagen after it was impounded, and she did not believe a casual observer would have
realized there was something beneath the console prior to its removal.
STANDARD OF REVIEW
In a sufficiency challenge to the evidence, we review all the evidence in the light most
favorable to the jury’s verdict to determine whether any rational jury could have found the
essential elements of the charged offense beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 899, 912 (Tex. Crim. App. 2010). We defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the weight to
be given their testimony. Id. at 899. “Circumstantial evidence is as probative as direct evidence
in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
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establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The standard of
review is the same for cases relying on either direct or circumstantial evidence. Id. “Each fact
need not point directly and independently to the guilt of the appellant, as long as the cumulative
force of the incriminating circumstances is sufficient to support the conviction.” Id. Because
Herrera-Obrego was charged as both a principal and a party to the offense, we will review the
evidence to determine whether it is legally sufficient under either theory. Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004) (“[W]hen the trial court’s charge authorizes the jury to
convict on more than one theory, as it did in this case, the verdict of guilty will be upheld if the
evidence is sufficient on any one of the theories.”).
DISCUSSION
Herrera-Obrego argues no rational trier of fact could have found he knew there was
contraband in the Volkswagen. 3 We disagree. In this case, a reasonable jury could infer
Herrera-Obrego exercised care, custody, and control over the cocaine found in the vehicle he
drove. Witnesses testified there was a strong odor in the car resulting from the fabric softeners
used to mask the odor of the drugs. Although the police admitted the alterations to the vehicle
were not readily apparent, the odor certainly was. Herrera-Obrego lied to the police about the
purpose of the trip and his intended destination. The couple never went to the flea market and
did not appear to make any purchases at any location. A defendant’s false statements are some
evidence of guilt. See Ates v. State, 21 S.W.3d 384, 390 (Tex. App.—Tyler 2000, no pet.)
(appellate court considered false statements made by defendant in considering sufficiency of
evidence); Loserth v. State, 985 S.W.2d 536, 541-42 (Tex. App.—San Antonio 1998, pet. ref’d)
3
To convict Herrera-Obrego as a principal, the State was required to prove: (1) he exercised actual care, control and
management over a controlled substance in the amount alleged; (2) he intended to deliver the controlled substance to
another; and (3) he knew the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 703
(Tex. Crim. App. 1995); Erskine v. State, 191 S.W.3d 374, 379 (Tex. App.—Waco 2006, no pet.)
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(same). Finally, Herrera-Obrego admitted “I know there’s something but she’s behind
everything” in an attempt to deflect his involvement. Given the circumstances of this statement,
a reasonable jury could infer that Herrera-Obrego knew the “something” was cocaine.
CONCLUSION
Viewing the evidence in the light most favorable to the jury’s verdict, and deferring to the
jury’s apparent credibility determinations, the evidence is sufficient to permit a rational jury to
find the essential elements of the offense beyond a reasonable doubt and to convict Herrera-
Obrego as a principal. The judgment of the trial court is affirmed.
Steven C. Hilbig, Justice
Do not publish
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